decided: June 29, 1977.
COMMONWEALTH OF PENNSYLVANIA
SAMUEL JOSEPH POLOF, APPELLANT
Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, Imposed on Bill of Indictment No. 0869, September Session, 1974.
S. David Fineman, Philadelphia, for appellant.
Roberta L. Jacobs, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., dissents.
[ 248 Pa. Super. Page 27]
Samuel Joseph Polof, the appellant, was subpoenaed to appear as a witness before the Special Investigating Grand Jury of Philadelphia County, which was convened to investigate alleged payoffs to police officers and public officials for the protection of illegal gambling operations. After appellant's appearance and testimony before the Investigating Grand Jury, a presentment was issued, approved and submitted to the Indicting Grand Jury, which subsequently resulted in appellant's indictment for perjury*fn1 and false swearing.*fn2 Appellant's counsel filed a Motion to Quash the Indictments which was denied.*fn3 Appellant pleaded not
[ 248 Pa. Super. Page 28]
guilty to the four counts of the indictment, and trial commenced January 17, 1975, before Judge KUBACKI and a jury. On January 30, 1975, the jury returned a guilty verdict on one count of perjury.
Boiler plate post-trial motions were filed on February 6, 1975, and on April 10, 1975, supplemental post-trial motions were argued before the court below. However, because of the absence of any indication that supplemental post-trial motions had been filed,*fn4 and the general nature of appellant's post-trial motions of record, this Court held that appellant's eighteen assignments of error were not properly preserved for appellate review.*fn5 This Court denied appellant's petition for reargument on April 16, 1976, and on August 2, 1976, our Supreme Court ordered the case remanded to us for disposition on the merits.*fn6
Appellant contends that the indictment should have been quashed because he was not notified of the impending indictment which deprived him of his right to challenge any individual juror or the array of the indicting grand jury. We agree. The Commonwealth does not challenge or deny appellant's assertion that he received no notice of his impending indictment.*fn7 Rather, it contends that Rule
[ 248 Pa. Super. Page 29203]
of the Pennsylvania Rules of Criminal Procedure does not apply in this case, and that the appellant's recourse was to make a post-indictment challenge to the array of the grand jury. While it is true that Pa.R.Crim.P. 203 does not literally apply to indictments initiated by special investigating grand juries, as we specifically held in Commonwealth v. Sills, 237 Pa. Super. 280, 285, 288, 352 A.2d 539 (1975), it is also true that an accused has the constitutional right to challenge the array of the grand jury and prove by legally competent evidence that one or more of the grand jurors should be disqualified for cause. Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968); Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966).
In Commonwealth v. Sills, supra, the defendant appeared before a special investigating grand jury convened to investigate cigarette smuggling in Philadelphia. After several unsuccessful attempts by the defendant to avoid testifying, the last of which coincided with the conclusion of the grand
[ 248 Pa. Super. Page 30]
jury's investigation, the investigating grand jury recommended Sills' indictment. Judge TAKIFF then directed the Commonwealth to submit the presentment to the indicting grand jury, and defendant was notified by certified mail of his impending indictment. Even though we held that the indictment should not have been quashed for failure to supply ten days actual notice to defendant prior to submitting the bill of indictment to the indicting grand jury,*fn8 we said
"[W]e must also decide whether the notice supplied by the Commonwealth was sufficient to allow appellee the opportunity to challenge the array of the grand jury, or challenge individual grand jurors for cause." 237 Pa. Super. at 288, 352 A.2d at 543.
Analysis of this same question in the present case leads to the inescapable conclusion that appellant was deprived of his constitutional right to challenge the indicting grand jury. The Commonwealth contends, however, that appellant could have challenged the grand jury post-indictment, and failed to do so.*fn9 Our Supreme Court expressly rejected a similar
[ 248 Pa. Super. Page 31]
contention in Commonwealth v. Wasserman, 466 Pa. 430, 353 A.2d 430 (1976). Additionally, we specifically applied the Rule 203(a) provision that a challenge must be made before the bill of indictment is submitted to the grand jury to cases of this nature in Sills, supra.
"While the accused must have an opportunity to challenge within a reasonable time the grand jury array or prove by legally competent evidence that one or more of the grand jurors should be disqualified for cause, Rule 203(a) specifically provides, 'in any event, a challenge must be made before the bill of indictment is submitted to the grand jury.'" 237 Pa. Super. at 290, 352 A.2d at 544.
For the foregoing reasons, the judgment of sentence is vacated and the indictment quashed.